In a recent decision of the Fair Work Commission, the Commission upheld the summary dismissal of a worker who had placed his hand close to the rotating drum of a machine in direct contravention of the employer’s safety protocols. This action was reported as a “near miss” to the employer by two other workers which led to an investigation following which the worker involved was summarily dismissed. He had sustained workplace injury previously and was well aware of the dangers. The Commission stated:
 The obligation to provide and maintain a safe and healthy workplace must be the paramount consideration in any workplace. It is also self-evident that the requisite safety protocols and requirements are made known and understood by employees from the outset through appropriate guidance, training, instruction and other mechanisms. It is also acknowledged that the appropriate response to some safety breaches can involve counselling, retraining, or the provision of a warning.
 However, it is also clear that simply providing a warning and, in effect, a second chance, cannot be the appropriate response in every case involving a safety breach, particularly if the importance of establishing and maintaining a safe and healthy workplace is to be emphasised and supported. In some cases the nature of the breach will warrant summary dismissal. I am satisfied that this is the case in the present matter, given the nature of the safety breach involved, and its potential consequences. I am also satisfied it has led to a situation in which Fenner Dunlop can no longer have confidence Mr Singh will act, at all times, in accordance with its safety requirements and protocols.
See the decision for further detail: http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/FWC/2015/5583.html
BLC draws and customises contracts for senior executives, staff and contractors, advises on recruitment processes and the employment and engagement of staff generally
The most important document in any employment relationship is the contract and this is often neglected or avoided at a time when both sides of the agreement should be embracing the opportunity to document what their respective rights and obligations are and what they expect of each other in the new working relationship.
BLC knows that different types of contracts suit different roles and relationships. While you may want a full and detailed contract for your new CEO, the documentation of your relationship with Award staff is necessarily going to be different as many of their rights will already be covered by clauses of the Award. Rights contained in the Fair Work Act 2009 and other applicable legislation need to be acknowledged and identified.
Decisions need to be made about the nature of the working relationship and the respective needs of the business and the individual.
BLC can assist with drafting and customising for your business a suite of consistent and fair contracts applicable to all levels of your organisation and to all types of employment and contracting relationships.
BLC expertly conducts workplace investigations or climate or cultural reviews
Joanna Betteridge lectures for Monash University’s post graduate program in Workplace Investigations and Misconduct. She has conducted a great many workplace investigations for public and private sector organisations.
Only one of her reports (so far as she is aware) has been referred to in subsequent legal proceedings – Suleyman v The Speaker of the Legislative Assembly & Anor (Anti-Discrimination)  VCAT 2305 (16 December 2011) – see http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/vic/VCAT/2011/2305.html. In that matter, her report was accepted by both parties.
At times, BLC may advise employers that the subject matter of a complaint is not appropriate for an investigation as it may, for example, refer only to performance related matters (not acts of misconduct or bad behaviour) or it may only contain very generalised allegations that cannot be fairly defended by the person so accused. In those sorts of circumstances, BLC may recommend either an alternative dispute resolution process or a more broad based cultural or climate review where all members of a working group or department can be interviewed and a report provided to the employer identifying areas of dispute or dissent and recommendations to address those issues.
In the event that it is appropriate to proceed with a workplace investigation, Joanna provides a detailed and comprehensive investigation process and report, with common sense applied and practical observations made, strong evidence based findings and, where sought, recommendations for addressing any outstanding issues in the workplace.
Shorter reviews or briefer workplace snapshots can be organised but should not be understood to be as robust as an investigation if the matter ultimately ends up playing a role in legal proceedings.
BLC advises employers and individuals regarding their OHS legal obligations and represents those prosecuted by WorkSafe Victoria. Duties are imposed on all employers, self employed persons, officers, employees, those who manage or control workplaces and “upstream” parties such as the manufacturers and suppliers of plant and equipment to workplaces. BLC also assists employers to draw appropriate policies and procedures.
OHS law is criminal law. Prosecutions under the OHS Act 2004 can result in a personal criminal record, substantial fines that are unlikely to be covered by any insurance policy and even potentially jail sentences for very serious offences.
Victoria has not joined in with the harmonised Work Health and Safety legislation passed (or proposed), in various forms, by all other States and Territories and continues to be governed by the OHS Act 2004. BLC can advise national employers regarding both the operation of the OHS Act 2004 and the obligations on employers in other jurisdictions under the Work Health and Safety legislation.
OHS law imposes extremely onerous responsibilities on all employers and senior executives (“officers”), as befits a law designed to protect the health and welfare of people at work. BLC can advise all duty holders of their responsibilities and what to do in the event that an accident or near miss occurs at work. Many workplace risk situations are dealt with by administrative measures such as Improvement Notices. These can be reviewed where they are not considered to be reasonable. Where an employer has allowed an unreasonable workplace risk to occur, and a future prosecution is a real possibility, BLC can assist with advising employers on entering into enforceable undertakings with WorkSafe Victoria.
BLC regularly conducts training in OHS obligations for Boards, senior executive groups and groups of employees with particular OHS responsibilities or interests such as supervisors, those who deal with large volunteer groups, OHS representatives or committee members.
Joanna Betteridge has lectured for Monash University’s post graduate program in Occupational Health and Safety law since 2005.
BLC provides advice and support for employers and employees seeking to eradicate bad behaviour from the workplace and to obtain justice and redress wrongs
Misconduct and bad workplace behaviour are complex and difficult issues to deal with in any workplace. Except for very obvious misconduct such as fraud, theft and violence, sexual harassment or intimidation, the identification of other bad behaviours is often a question coloured by differences in perceptions, patience, intentions and underlying biases and assumptions.
BLC believes that strategies and solutions to deal with this behaviour then also have to be complex and sometimes multi-layered – yes, legally appropriate, but also approached with an attitude of respect and an ability to listen and understand concerns and to seek both a legal and practically workable solution.
BLC encourages all employers to take a zero tolerance attitude, throughout all levels of an organisation, to behaviour such as discrimination or sexual harassment or bullying as this will minimise instances of these behaviours but such policies need to be accompanied by appropriate training and consistently applied policies and procedures. BLC can assist with all of these steps.
Joanna Betteridge lectures for Monash University in Discrimination Law and Human Rights at Work and she therefore has an extremely high level of expertise in relation to the law in this area.
BLC tailors educational programs to all levels of an organisation
Joanna Betteridge is a Senior Fellow with Monash University and has taught in their post graduate Law Faculty Workplace Law program since 2005. Her classes all have waiting lists. She lectures in:
- Occupational Health and Safety,
- the Law of Workforce Management,
- Discrimination and Human Rights at Work and
- Workplace Investigations and Misconduct.
Joanna is an excellent communicator and teacher. She has presented training sessions to Boards, groups of senior management, broader area interest groups, staff groups generally and specific interest groups of staff such as health and safety representatives, staff managing large groups of volunteers and staff groups leading up to traditional “danger times” such as Christmas parties.
BLC can tailor a customised training package for any employer based on their industry, their experiences and particular areas of risk.
BLC offers alternative dispute resolution solutions to workplace disagreements…facilitated discussions between two staff or a whole department or a formal mediation process
There will always be difficulties in human relationships where people of different backgrounds, ages, experience, skills and qualifications and personality type all have to work together in often stressful and pressured conditions.
BLC recognises and understands that sometimes these difficulties can be resolved by both parties to a dispute articulating their concerns and being heard by an independent third party who provides insight and a solution focused pathway to resolution of the dispute and restoration of the relationship. Sometimes both parties need to talk out the dispute in a formal mediation process.
In situations where relationships are permanently damaged, BLC can advise employers on appropriate next steps.
Joanna Betteridge became an accredited mediator with LEADR in 2004.
BLC can represent and advise employers and employees in pursuing legal solutions when all other avenues have been unsuccessful
Sometimes litigation is the only solution left. Unfair dismissal and adverse action claims, contractual and entitlement disputes, discrimination and sexual harassment complaints, defending prosecutions by the Fair Work Ombudsman or WorkSafe (OHS prosecutions) are all matters where expert advice and representation are required.
BLC is well qualified and experienced at the provision of those services. BLC takes a pragmatic approach to litigation and will not advise you to waste resources or unnecessarily prolong litigation. BLC will advise you to take all appropriate steps to act as a litigant of honesty and integrity, and in accordance with the behavioural rules set down by the Courts.
Where necessary, BLC will engage expert Counsel and utilise the services of other expert professionals as and when required.
Often the hardest conversation to have at work is the one acknowledging that the relationship has run its course or that the development of different interests has caused an divergence of purpose or that the parties are simply not a good cultural or skills based “fit” any longer.
BLC walks both employers and employees through that difficult process and series of communications endeavouring to allow for both parties to retain dignity and respect, to allow for a fair result and to refrain from damage to the professional reputations of both parties. Legal risks are managed by appropriate documentation including Deeds of Release.
BLC specialises in advising employers holistically of their obligations under the many pieces of legislation which impact on workplace injury
Joanna Betteridge commenced her legal career practising in personal injury law and representing workers compensation insurers, the Transport Accident Commission and later, the Victorian WorkCover Authority. She was one of the first LIV Accredited Personal Injury Law Specialists in 1993 and was partner in charge of WorkCover at Maddocks Lawyers for many years.
BLC therefore has a unique depth of understanding and experience in dealing with all aspects of workplace (and non work related) injury and illness.
Any fitness to work issue arising in a workplace must take into account obligations under the Workplace Injury Rehabilitation and Compensation Act 2013 (where a WorkCover claim has been made), Federal and State anti-discrimination law, the Occupational Health and Safety Act 2004 and the Fair Work Act 2009 as well as any applicable contractual, Award or Industrial Agreement provisions.
BLC can navigate with legal expertise and practical experience around all aspects of injury and fitness to work questions.